CANTON — A Potsdam police lieutenant and former chief have indicated, under oath, there was no evidence to indicate Oral N. “Nick” Hillary murdered 12-year-old Garrett J. Phillips, according to court documents.
Hillary has been indicted, charged with second-degree murder in the 2011 death of the Potsdam boy.
According to the indictment, it is alleged on Oct. 24, 2011, between 4:56 p.m. and 5:30 p.m., at 100 Market St., Apt. 4, Potsdam, Hillary caused Phillips’s death by suffocation and strangulation.
Hillary’s attorney, Edward F. Narrow, of Dumas & Narrow P.C., Canton, in an affirmation filed with the St. Lawrence County Court clerk’s office Friday, said depositions taken under oath Feb. 24 by both Potsdam Police Lt. Mark R. Murray and former Chief Edward F. Tischler indicated there was no evidence that “physically placed Oral Nicholas Hillary at the crime scene.”
In Exhibit E of Mr. Narrow’s affirmation, Mr. Murray told Hillary’s civil attorney, Mani C. Tafari, of Queens, under examination, that there were no witnesses who placed Hillary at 100 Market St. the day the boy was murdered.
Additionally, Mr. Murray told Mr. Tafari that no one came forward as a witness saying “a black guy” jumped out a window at that address on that day and he said he never heard “that a black person was seen at 100 Market St. the day Garrett Phillips died.”
Mr. Tischler, in his examination by Mr. Tafari, said Hillary’s fingerprints were analyzed in the investigation and “we have no evidence at this point that shows his fingerprints ... the results we got back have not placed him at that crime scene.”
Mr. Tischler said DNA also was analyzed in the investigation, and, like Hillary’s fingerprints, at no point did it connect him to the murder scene or match up with any evidence found at the crime scene.
During a hearing March 3 in County Court, District Attorney Mary E. Rain said she would provide Mr. Narrow with surveillance video that might contradict a statement made by John E. Jones Jr., a sheriff’s deputy who is a former boyfriend of Garrett’s mother, Tandy L. Cyrus.
“I’m giving over the video for the reason that this is a very serious case,” Ms. Rain said. “There is no reason to withhold it. They are going to find what I found. First of all, it 100 percent exonerates John Jones; it is not an issue in this trial.”
Ms. Rain said the footage not only exonerates Mr. Jones, but is proof that Hillary is the killer.
“It also tends to show that Oral Nicholas Hillary was at the crime scene, was present at the time of the murder, and, in fact, is evidence that he did murder Garrett Phillips,” Ms. Rain told the Times on March 3. “This evidence is not going to help the defense whatsoever; it is only going to help the prosecution, so I am more than happy to give it over to them to try to convince his client to plead guilty.”
It has been about 60 days since Ms. Rain said she would turn over the video, and Mr. Narrow has filed affirmation saying he has not yet received it.
“Absent production of the video that the district attorney is referencing, the defendant would clearly suffer prejudice and is unable to prepare his defense,” Mr. Narrow wrote in his affirmation.
Mr. Narrow added that St. Lawrence County Sheriff’s Deputy Andrew Ashley and his K-9 unit responded to the scene of Garrett’s death and “picked up (a) scent” that led the dog away from 100 Market St. to a location at or near 17 Washington St.
Hillary is alleged to have been with a former colleague, former Clarkson men’s assistant soccer coach Ian P. Fairlie, at Mr. Fairlie’s 16 Garden St. home in Potsdam, which is in the opposite direction, Mr. Narrow said. Hillary’s home also is in the opposite direction from 17 Washington St.
“To date, the people have not provided any of Deputy Ashley’s notes, or any other notes relating to this occurrence taken by any member of the Potsdam Police Department,” Mr. Narrow said in his affirmation.
Mr. Narrow accused Ms. Rain of withholding evidence in the case against his client for about 88 days since his original request, including hundreds of photos taken by the state police Forensic Identification Unit on Oct. 24 and 25, 2011, which include photos of the exterior of the building, of the screen that allegedly was “pushed out” by the perpetrator, or of a footprint allegedly discovered at the scene.
He also is seeking video footage taken of Hillary at the Potsdam Police Department on Oct. 26, 2011, and a video taken by Mr. Murray on Oct. 25, 2011, that was used to obtain a search warrant issued by Potsdam Village Justice Nicholas Pignone on Oct. 26, 2011.
In an order to show cause, signed by County Judge Jerome J. Richards on Monday, Ms. Rain has been ordered to allow the court to conduct a private inspection of the entire file maintained by her office.
A hearing is scheduled for Monday in St. Lawrence County Court.
The indictment against Hillary is the second procured by Ms. Rain. Her first indictment, issued May 15, 2014 on the same charge, was dismissed in October by Judge Richards.
In an April 27 letter to the state Supreme Court Appellate Division, Third Department, in Albany, Assistant District Attorney A. Michael Gebo said the district attorney’s office will no longer be seeking an appeal in the first dismissed indictment.